The Supreme Court takes up the Fifth Amendment: Is silence proof of guilt?

File Photo: 28th May 1951: New York Police frisking youths after fighting erupted between rival gangs in Queens' Village.

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The Supreme Court upheld the Texas Criminal Court of Appeals decision June 17.

Imagine this scenario: You’re walking to your car. A police officer approaches and asks whether you know anything about a tax fraud scheme at your office. Having seen enough Law & Order to know the virtues of keeping your mouth shut, you say nothing, get in your car, and drive away. You’re later arrested for participating in the fraud. At your trial, can the prosecutor tell the jury that your silence is proof that you’re guilty?

Nearly a half-century after the famous Miranda decision, the answer still isn’t clear—and that’s about to change. The Supreme Court will hear arguments Wednesday in a case, Salinas v. Texas, that asks whether the Fifth Amendment “protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.” The court’s answer will reverberate across the country, affecting how police and other investigators question suspects for years to come.

The Salinas case involves a decades-old Texas murder. In 1992, two brothers were shot to death at their Houston apartment. Investigators suspected Genovevo Salinas. They drove to Salinas’ house, where he lived with his parents, and interviewed him. During the interview Salinas’ father handed over his shotgun so police could examine it. The officers then asked Salinas to come downtown to provide “elimination prints” and to answer questions so they could “clear him as a suspect.” Salinas agreed.

At the station, Salinas answered questions for nearly an hour. But when an officer asked him if ballistics analysis would connect the shotgun to the killings, Salinas said nothing. Instead, according to the officer, he “looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, began to tighten up.”

Salinas eventually was arrested and tried for murder. At trial, prosecutors used his silence about the shotgun as a key piece of evidence. The interviewing officer testified about it. And during closing arguments, the prosecutor told the jury that Salinas’ silence was proof of his guilt. “You know, if you asked somebody–there is a murder in New York City, is your gun going to match up [with] the murder in New York City? … An innocent person is going to say: What are you talking about? I didn’t do that. I wasn’t there,” the prosecutor said. “He [Salinas] didn’t respond that way.”

The jury convicted Salinas, and the question now is whether the prosecution went too far. The answer turns on what the Fifth Amendment means. That amendment–the basis for the famous Miranda warnings–says that “[n]o person… shall be compelled in any criminal case to be a witness against himself.” But what does it mean to be “compelled”? Clearly, physical and psychological compulsion are not allowed: the Supreme Court has long forbidden police from harshly interrogating a suspect and then using the resulting confession in court. But the court has also said the amendment goes further. For example, prosecutors can’t tell the jury that it suggests guilt when a defendant decides not to testify at trial. That would be “compelling” the defendant to give evidence against himself, the court has explained, because the defendant is being punished for remaining silent.

That is the basis for Salinas’ appeal. This case is no different from silence at trial, his lawyers say, because Salinas was punished for exercising his right not to incriminate himself, and that kind of punishment compels defendants to talk. And, his lawyers have pointed out in court filings, a ruling against Salinas could change police practices nationwide. If what the police did in Salinas’ case is constitutional, they wrote, then police in all investigations “will have an incentive” to convince suspects to talk by telling them “that any silence could be used against them at trial.”

Texas and the Obama administration see things differently. They say that the “core right” of the Fifth Amendment “is the right not to be compelled to testify against oneself at a criminal trial.” The court should be cautious about extending that right to situations far removed from trial, they say, because that deprives prosecutors of useful evidence–and the jury of a full picture of the case–for no good reason. As one brief supporting Texas put it, “the cost” of too broad a rule protecting defendants “is the heavy cost of a miscarriage of justice”: killers and other lawbreakers go free.

The Supreme Court will decide by June which side is right. The impact of its decision will reach far beyond the context of violent crime. As Salinas’ lawyers put it: “Police officers and other law enforcement agents across the country attempt to conduct such questioning on a daily basis–approaching everyone from suspects of common street crime to high-ranking executives of Fortune 500 companies.” Salinas will determine what happens when the targets of that questioning decide not to talk.